Thursday, August 16, 2012

In defiance of science, the beat goes on in Lake County

In 1986, Starks, then 26, was convicted of rape and battery in an attack on a 69-year-old north suburban woman who identified Starks as her assailant. The best available scientific testing at the time of the trial showed that Starks could have been the source of genetic material taken from the victim and her clothing.

He was sentenced to 60 years in prison, but maintained his innocence and fought from behind bars for new, more sophisticated DNA testing. Lake County prosecutors tried to block that effort, but Starks prevailed in the early 2000s with the help of the New York-based Innocence Project. The far more discriminating test conclusively excluded him as the source.

Case closed? Apologies all around?

Not even.

Prosecutors argued in court that the traces of semen must have come from an earlier sexual partner of the victim and been present due to her "bad hygiene."

The problem with this new theory was that the sample was fresh — no more than 30 hours old according to expert trial testimony — and the victim was on record that she hadn't had sex with anyone for at least three days prior to the attack.

It wasn't until 2006, after more tests and numerous appalling wrangles in front of judges, that the Illinois Appellate Court ordered a new trial for Starks (left). He was released on bond and, even though the victim had died and couldn't testify, prosecutors still wouldn't give up. For six more years they bickered in court trying to keep the case alive until all hope was lost in May of this year and they dropped the rape charge against Starks, who turns 53 this month.

But they refused to drop the related battery charge, even though the victim testified it was the rapist who beat her up. Why? In a response petition (.pdf) filed last month with the Illinois Appellate Court, a state prosecutor working with local prosecutors raised a number of technical objections having to do with the timing of Starks' request but revealed in a footnote their abiding belief that there's "strong evidence" Starks is guilty.

What makes this story perfectly believable is that it has unfolded in Lake County, where 22-year veteran State's Attorney Michael Waller has a habit of preferring peculiar theories to the plain truths suggested by science.

Consider these other cases:

Juan Rivera, convicted in the 1992 rape and murder of 11-year-old Holly Staker in Waukegan. When testing excluded Rivera as the source of DNA found in the victim, prosecutors under Waller argued that the little girl had consensual sex with a never-identified boyfriend prior to the attack.

"The state's theories are highly improbable" and distort the evidence "to an absurd degree," concluded the stinging Illinois Appellate Court opinion late last year that finally persuaded Waller to back down and drop the charges against Rivera.

Jerry Hobbs, arrested and held without bond in the 2005 slaying of his daughter Laura, 8, and her friend Krystal Tobias, 9, in a Zion park. In 2007, when DNA testing of semen found in his daughter excluded Hobbs, the Walleristas insisted that Laura must have been playing near where a couple had had sex, gotten semen on her fingers and wiped it on herself.

In 2010 they had to abandon this nutty conjecture and release Hobbs after a search of court records matched the mystery DNA to Jorge Torrez, a former friend and neighbor of Krystal Tobias' family who had been arrested for a string of violent attacks on women in the Washington, D.C., area.

James Edwards, convicted of beating to death a Waukegan appliance store owner in 1994. Blood evidence at the scene didn't match either Edwards or the victim's, but Team Waller explained that away by saying it must have been left earlier by a store employee with a bleeding wound.

When the Illinois Supreme Court ordered the blood tested in 2010 — lo! — it matched a sample on file from convicted armed robber Hezekiah Whitfield, who has since been charged with the murder.

Ronald Safer, one of the attorneys now representing Starks, asked me, "What is Lake County's interest in clinging to the battery conviction?"

I wondered, too, but Waller didn't return my calls. He's not running for re-election this fall, and my theory is that this churlish defiance is his final, one-finger salute to those who've successfully challenged his commitment to real justice over the years.

Of course, he could prove me wrong by gracefully dropping the remaining charge against Bennie Starks.

No JerryB, the only way to punish these prosecutors is for the feds to indict them for violating the civil rights of the people wrongly arrested & convicted.
Send the Lake County prosecutors to federal prison & there will be a sea change in prosecutors around the country!

Echo Garry 4,000 percent. This kind of stuff drives me absolutely CRAZY. That people can get away with this, that Jim Ryan should still walk free after what he did in the Jeanine Nicarico case drives me insane. People should go to jail for this.

TO be fair, the Feds did go (unsuccessfully) after people in the Nicarico case. But I agree with you. It is sick that people like Martha Coakley made careers out of pursuing ludicrous cases against innocent people.

ZORN REPLY -- The unsuccessful DuPage 7 prosecution was not a federal case, but a case brought by a special Du Page County prosecutor. It was heard in Wheaton.

I share your sentiments. But as a legal matter it would be very hard to prosecute them in the Federal system. As a practical matter it will not happen.

Here is what you can do as a practical matter. I assume that one of Waller’s right hand men will be running to fill Waller’s spot. Contribute your time and money to the campaign of this guy or gal’s strongest opponent.

Wrong again, JerryB:
As they say, a federal prosecutor could indict a ham sandwich!
Just indicting & trying them for violating Starks' rights would bankrupt them.
Hauling them away in handcuffs will humiliate them.

Or are we back to the days of that cowardly fool & total dupe, Scott Lassar as the US Attorney!

Zorn knows all this local abuse stuff by prosecutors very well. I do not.

But I will assume for the sake of argument that all the victims are more sympathetic than Drew Peterson, Blago, Jonathon Edwards, and George Zimmerman.

But that is exactly why we must be diligent in protecting the rights of Peterson, Blago, Edwards, and Zimmerman. Prosecutors first become accustomed to abusing the rights of unsympathetic defendants. And then they proceed to all others.

I am an attorney and only SOMEWHAT know what I am talking about here. You are not an attorney and thus I know you do not know what you are talking about. Perhaps criminal defense lawyers such as GJO’l and jlp can help us out. I do know that there are very high legal barriers to criminally prosecuting prosecutors in contradistinction to cops.

Read my prior post.

Thus your suggestion that

[Wrong again, JerryB: As they say, a federal prosecutor could indict a ham sandwich! Just indicting & trying them for violating Starks' rights would bankrupt them. Hauling them away in handcuffs will humiliate them.]

is repugnant unless the Feds have a strong legal and factual case going in.

The funny (not ha ha) thing is that if any of these guys had tried to raise any of these theories in their own defense during their trials - for example, if Juan Rivera had tried to suggest that Holly had had consensual sex with someone else - the prosecution would have eaten them alive for daring to suggest something so obscene.

For that matter, does anyone know if Holly's family had any reaction to this new theory? If it were me, and my daughter had been raped and murdered, had it become clear that they had prosecuted the wrong guy, and had they tried to cover their mistake by posthumously painting my daughter as a slut, there would be hell to pay.

The State's Attorney is an elected position. It would help if opponents went after the corrupt system run by Waller and his record. Yet, he was re-elected time and again. Now he's retiring, both men running for his office claim they'll clean it up. Too little, too late.

Lake County law enforcement and the prosectors that protect their methods of interrogation and investigation are all involved in this drive for convictions no matter what the evidence. The judges here aren't much better. Justice for the innocent is a joke. It will be a long time before this kind of abuse will end.

Craig -- Yes, I knew (and almost put in) about the DuPage 7 trial. (I still well remember EZ's column about the deputy who I never could believe was indicted; name escapes me but he's the guy who went through his credit card receipts and fessed up he couldn't have had a conversation with other deputies because he was on vacation in Florida.) But, while I can remember that guy, I don't recall Jim Ryan being indicted or standing trial ... and he's so slimy he should have served time for his despicable behavior.

I completely agree with the comment that you have to protect the rights of all the defendants, including ones you fully believe are guilty. I'm waiting for the "mistrial" ruling one of these days in the Drew Peterson case, for example -- I think prosecutors have gone too far more than once.

Prosecutors enjoy broad immunity from civil liability, and criminal prosecutions are extremely rare. I thought the Du Page 7 was a bad prosecution. I thought those prosecutors committed grave errors of judgment after being blinded by their zeal to get justice for the Nicarico family, but errors of judgment are not criminal. So I would not hold out hope for a criminal prosecution of Waller.

I don't have an easy alternative, except to once again tell you that Chris Kennedy is the better of the two candidates to replace Waller, as he made clear his commitment to clean up the office most early and most often. I haven't found Mike Nerheim's commitment to be nearly as genuine.

The problem is that the voters of Lake County are fundamentally lazy and don't pay a lot of attention to who is judging and who is prosecuting in those elective spots in sleepy Waukegan. Local Republicans do the slating and historically have controlled the offices. A lot of people in the county work in Cook and just don't care about their countywide offices. Until that changes, and maybe it will if they elect Kennedy, there will be no real change.

These are the same voters who came out in droves, in SW Lake County, to support Joe Walsh and put him over the top in a close race against Bean. They're just not very sophisticated voters, though they make decent money so they think they are.

Why don't you read what you write? "You are not an attorney and thus I know you do not know what you are talking about." Your conclusion (you don't know what you're talking about) clearly follows your premise (you're not an attorney). Either own it or say you were mistaken.

If you won't take what you write seriously, how can you ever expect anyone else to do so?

Now that's messed up. The only way they can believe that is if they believe that their 11-year-old daughter was out having sex just before Rivera murdered her. The mind boggles.

Posted by: Dienne | Friday, August 17, 2012 at 08:26 AM

But you see families of victims fasten on the initial arrestees for crimes all the time. The Nicaricos were convinced that Cruz and Fernandez were guilty long after it became obvious to all and sundry that they could not have murdered Jeanine, and that all of the evidence pointed in another, easily identified, direction. You see it now in the Drew Peterson trial (not defending Drew here, just sayin') where each evening you see on the TV the families of Kathleen and Stacy excoriating Drew, while the evidence that he killed Kathleen appears sketchy, and no one can prove that Stacy is even dead!

WARNING: It appears that MR. JM has as beef with me. All others can safely ignore.

I have no idea what you are talking about. Plus you are diverting this thread into your personal diatribe against me.

You state in your diatribe that

[(You) believe that Mr. Zorn's column is clear evidence that one can know what one is talking about regarding this matter without being an attorney.]

This is where you get egg on your face because I already admitted that earlier when I said:

[Zorn knows all this local abuse stuff by prosecutors very well. I do not.]

You appear to glom onto a single offending sentence. However, the fuller context is as follows:

[I am an attorney and only SOMEWHAT know what I am talking about here. You are not an attorney and thus I know you do not know what you are talking about. Perhaps criminal defense lawyers such as GJO’l and jlp can help us out. I do know that there are very high legal barriers to criminally prosecuting prosecutors in contradistinction to cops.]

What Garry said seemed like nonsense. Since he was not an attorney, I had no doubt that it was nonsense. On the other hand -- if knowledgeable attorneys concentrating in criminal defense – such as jlp and GJO’L – said the same thing – it would give me pause. I would have thought to myself – “perhaps I have it all wrong. I do not think so, but I better inquire of jlp and GJO’L first.”

Also note that my swipe at Garry only came as a response to his earlier categorical swipe at me:

[Wrong again, JerryB: As they say, a federal prosecutor could indict a ham sandwich! Just indicting & trying them for violating Starks' rights would bankrupt them. Hauling them away in handcuffs will humiliate them.]

MR.JM – you have had a good history with me. Thus I do not want to wipe you off for good. But for now – stop digging -- and just walk away.

Quick Google search: "Illinois Department of Public Aid worker Blanche Gonzalez testified that she spoke with complainant shortly after the alleged attack. Complainant told Gonzalez that she had accused defendant of having sexual intercourse with her, but that it was not true. Gonzalez testified that complainant told Gonzalez that she told the police that she was sexually assaulted "because he was going to pay for beating her up." Complainant also told Gonzalez that "[h]e didn't want to have any-didn't want to rape [complainant], he wanted oral sex."

Starks jacket and watch were found at the scene. He says they were stolen.

It's possible that Starks did commit the battery and sexual assault (Was there nonconsensual oral sex? Did they DNA swab her mouth?). But big issues with victim and original charges.

Have these guys violated ethical rules for prosecutors? I don't know them all myself, but I believe that prosecutors have a special set of ethical duties that require them to seek justice and guard against convicting the innocent. Too often they behave like advocates for victims' families, or for the police or other investigators. In fact, they represent all the citizens of the jurisdiction, usually including the defendant too, and have a duty to use their particular power and discretion in a responsible way. If these actions are not ethical violations, they ought to be. They ought to be criminal and tortious too, in my opinion, but I guess that sort of liability is a bridge too far. In the meantime, a finding of ethical violations, and a harsh punishment like disbarment, would send the message far and wide that a prosecutor must take his commitment to justice seriously, and not play these shameful games with people's lives.

We are having a similar problem here in San Diego, on a case where murders were commited by the same killer here and in Illinois. He was caught over there, using DNA, on a case that occured exactly 13 years, to the day after a still unsolved murder here. April 1, 1984, and 1997. You may know the case well. Andrew Urdiales. I was the last deputized person to see the victim that day, when she, a 16 year old, was released from Child Protective Services, because she was legally emancipated. I recall the date, because it was the same day that Marvin Gaye, died. The M.O. matches his. She was last documented to have been at the San Luis Rey Mission, two miles away from Camp Pendelton, where Urdiales was documented to have been stationed at the time. Over a dozen of my coworkers, more than half of them also deputized, were vividly aware of the horror of the experience of hearing that she had been killed after we had put her on the street. There had been nothing else that we could do. The Sheriff, the same one involved in that Coronado Island Mansion "Suicide", says there is no file on the girl. They seem to imply that a dozen of us made this up. Something is going on here. A simple DNA test would help to end rumors that someone from the Oceanside P.D. may have done this. In fact, it may be possible that Urdiales, may have taken a page from Ted Bundy's book, and volunteered at the Mission, to find vulnerable victims. We suspect that something may be being being hidden.

What you say about the duties of prosecutors is embodied in the ABA Code of Professional Conduct and in U.S. Supreme Court case law.

Unfortunately, it has long been recognized as a practical matter that the only way to discipline them is by

1) Excluding their evidence;
2) Dismissing their prosecutions;
3) Voting them out of office;
4) Publicity.

Unfortunately again -- ##3, 4 are also problematic. An ethical and courageous prosecutor might be the one that actually resists public pressure. Nifong – the initial prosecutor in the Duke Lacrosse matter – was certainly not such a prosecutor.

@GJO'L:
If errors of judgement aren't criminal, then all arrests & prosecutions of drunk drivers must end!
Of course errors of judgement can be criminal & the Lake prosecutors are criminals.
As for JerryB, lawyers always defend shysters!

The only way to stop this is to change the law and make sure that all prosecutors are personally looking at serious jail time and civil damages when they behave like this. Legal technicalities of this nature aren't justice and they're just plane criminal regardless of what laws or customs are on the books. Law should reflect right and wrong and NOT who is the trickiest.

J Ryan is one of the more despicable politicians I've ever had the pleasure to ride the train with. Such self interest was truly amazing. Only his partner in crime, J Birkett, a pension thief, may be more disgusting. All the crap that's fallen on Ryan's head since his fall is truly deserved.

While the prosecutors appear to be incompetent for continuing to pursue a person after all other efforts have failed, everyone seems to be missing the fact that these were JURY TRIALS. A JURY of your peers listened to this case and it was THEY WHO CONVICTED these men. A JURY deliberated and came away with a conviction, even on such flimsy evidence. So the people of Lake County must be conviction-happy and assume that anyone charged with a crime MUST BE GUILTY. Sure, excoriate the prosecutors as they should be, but put a lot of the blame on the stupid people of the jury(ies) for the conviction(s).

In April 2012 the US Supreme Court decision in Rehberg includes absolute immunity for law enforcement officers who present perjured testimony to a grand jury against a section 1983 civil action. Prosecutors already enjoyed absolute immunity under common law, which means they have had the “freedom” to violate their oath, commit perjury and fraud, withhold exculpatory evidence, and practice malicious prosecutions without fear of civil liability. As long as prosecutors function in their “prosecutorial” role they are protected from civil suits by private citizens in federal court! Since Nifong acted outside his prosecutorial role, he could not successfully claim a defense of absolute immunity in a civil case. Furthermore, prosecutors and State’s Attorneys are considered to be an "extension of the State." Therefore, prosecutors are able to claim an 11th Amendment Sovereign immunity defense to dismiss a 1983 civil action against them. Under common law, the 11th Amendment grants States and their agencies immunity from civil suits and bars federal courts from deciding in such cases filed against the State or their agencies by private citizens. Contrary to justice and logic, the US Supreme Court felt that prosecutors needed absolute immunity from committing criminal acts such as perjury and fraud in order to perform his or her “prosecutorial” duties even if their criminal acts ultimately “railroad” innocent people and result in wrongful convictions. Now the Supreme Court feels that law enforcement officers need absolute immunity when they present perjured testimony before a grand jury in order to aid prosecutors in their pursuit to indict an innocent person that they have targeted for the sole purpose of obtaining a wrongful conviction. Since when has the job of law enforcement officers and prosecutors required them to commit criminal acts? Since when has liberty and justice for all given governmental officers and state agencies the freedom to willfully and knowing arrest and convict innocent people and then deny the wrongfully accused and convicted of his or her civil right to file suit against his or her wrongdoers? How can any citizen be safe from malicious prosecutions that derive from indictments that are based on perjured testimony when the US Supreme Court has shielded criminal justice authorities with ABSOLUTE IMMUNITY? My endorsement in the general election for the next Lake County State’s Attorney is with Mike Nerheim. http://www.conservapedia.com/42_U.S.C._%C2%A7_1983http://www.supremecourt.gov/opinions/11pdf/10-788.pdf

[JerryB is an atty? Just goes to show you even the bottom 1% of law school are able to practice law. .. Your comments range from relatively understandable to outright nonsense. Very weird, and I have yet to figure out a pattern.]

You say you are [Just a guy who's been lurking ever since Zorn started this blog].

But now for the first time today you choose to post? And of all things for your very first post to be about -- about me of all things. Oh! wow!

Yep -- I think I know who you are.

ZORN REPLY-- An ip address check shows that Hangin' ... may have posted briefly under another name a long time back, but those addresses can duplicate depending on service providers, locations, etc. so if you think "hangin..." is someone you know from these boards, you're probably wrong.

Hmmm, prosecutors enjoy absolute immunity from civil suit, so elected prosecutors would want to preserve that doctrine to allow their assistants to do their jobs without fear of a civil lawsuit if they lose a case. So why would an Illinois prosecutor sue the special prosecutor who lost a case against him, and then claim that prosecutorial immunity doesn't apply in that case, in a suit that would weaken the doctrine and lessen its protections for the prosecutors who work for him, as well as every other line prosecutor in Illinois?

No real prosecutor would really bring such a suit, would he?

And what special prosecutor on earth would settle such a lawsuit if sued?

MCN: Scott Lassar was such a fine human being that he ignored George Ryan's crimes & essentially endorsed him for governor!
He was worthless as US Attorney!

lexi: That both Obamas are lawyers is a major part of their problems.
Hillary, also a lawyer came up with a 1300 page health insurance plan. Obama went that better with a 1500 page plan.
I could do it with a one page plan!

Lawyers are this country's bubonic plague.
Or as the joke goes: What are 10,000 lawyers chained to the deck of the Titanic?
A good start!

@JerryB:
Now you're just being silly!
The problem is all the lawyers that are in city councils, state legislatures & Congress.
Plus the lawyers that run corporations. They're even worse than when a bean counter runs a company.
Lawyers need to stick to being lawyers; writing wills, contracts & yes, being prosecutors & defense attorneys.
But not making up 90%+ of elected officials.
Decades ago, we had citizen legislators, people who wanted to be there because they had a cause. Storekeepers, farmers, doctors & dentists.
Now we have almost nothing but lawyers there, writing laws that no average person can understand & sometimes not even judges can figure them out!
Occasionally, there are lawyers that come to their senses & do something productive, which means that they are no longer lawyers.
Charles Peters, the founder of The Washington Monthly Magazine is one such person.
Even Harvey Levin of TMZ qualifies in that respect.

It may have been fiction, but Jarndyce vs. Jarndyce is what this country has ended up with as a normal course of business.
Other examples are the copyright trolls & the patent trolls.

Everything you say in your last post is legitimate. I even agree with about 85% of it. We certainly have too many lawyers. We need more engineers.

I too would like to see Waller dragged out in cuffs. I merely said that under existing law it probably could not happen. GJO’L and jlp backed me up.

I would have resigned if I were in Waller’s office. As suggested by JakeH I do hope that the ARDC takes a look. Perhaps reforms can be made to combat so-called “Waller-type” abuses. See I love when a misdeed is named after someone – much like a “Ponzi-scheme.”

Laws are certainly too vague. Maybe they are vague in order to be passed with the hope that the courts will do the correct thing. That is not a good idea.

Let’s shake hands and wish each other a fun weekend. The weather will be great. After-all we are Rogers Park neighbors.

Errors of judgement may not rise to the level of criminality for prosecutors but it certainly rises to the level of malpractice. Can absolute immunity protect a prosecutor from acts of pursuing a defendant when the evidence proves that they are not guilty?. Perhaps malpractice claims against prosecutors will force them to think twice before claiming that an 11 year old girl had sex with her killer or someone else. If a malpractice claim is successful then the taxpayers can recoup some of the money paid out from any potential civil suit or settlement.

ZORN REPLY -- To be clear, it's not on its face unconscionable to look into the angle that an 11 year old girl was having non-forcible sex with a boyfriend, but such an extraordinary claim demands more than just conjecture. What boys/men was she in contact with? If you can't ID this person, as a competent investigator surely would be able to if he existed, then by far the most logical inference is the semen came from the rapist.

"ZORN REPLY -- To be clear, it's not on its face unconscionable to look into the angle that an 11 year old girl was having non-forcible sex with a boyfriend....."

Okay, but only if they were willing to consider that possibility during the trial itself if raised by the defense. My guess is, at trial they painted dear Holly as all sugar and spice in the flower of her innocence, which this brute of a rapist stole from her. If the possibility of sex with a boyfriend is only considered after the fact when it becomes clear that they got the wrong guy and they're trying to CYA, then, yes, it is unconscionable.

Agree with whomever said Lassar was a worthless US Atty. The evidence is rather overwhelming on that one, and it has nothing to do with his 'chops' as an attorney. Many fine attorneys have no backbone, or are scared to lose their job, or were patsy appointees to begin with, etc etc.

Did it ever occur to you that perhaps you are the pot calling the kettle black?

By your own admission you lurked around here for years and yet never posted. Zorn confirmed that you only posted many years ago but under another pen name. And remember “lurked” was your characterization of yourself.

And then of all people to arouse you to action –little old me. For your very first post under your new name you posted in total:

[JerryB is an atty? Just goes to show you even the bottom 1% of law school are able to practice law.]

This was your attempt to make a great first impression? And I will say – a very impressive job indeed. Your deep erudition was evident from the start.

My response was:

[What have I said above that you disagree with?]

Again there was no specification or elaboration of why you felt that I was a bottom 1%’ er. Rather we received another vibrant and witty retort:

[Just a guy who's been lurking ever since Zorn started this blog. Your comments range from relatively understandable to outright nonsense. Very weird, and I have yet to figure out a pattern.]

I – and I am sure MCN and GJO’L – treasure your unvarnished opinions – so dazzling because they are so unencumber by facts or reasoned analysis.

Let me clarify. I don't believe that Scott Lassar is a bad person & as a regular lawyer he might be very good, he was just a terrible US Attorney.
The fact that he totally ignored the crimes of George Ryan & his equally corrupt underlings is proof of that.
I seem to remember that he even stated at one point [in that deadly monotone of his] that Ryan hadn't committed any crimes.

As candidate for Lake County State's Attorney, I am committed to justice and bringing change to the Lake County State's Attorney's Office, including ensuring wrongful convictions never happen. The pursuit of justice begins with determining the truth, requires an open and ongoing dialogue, and a willingness to act based on hard facts and solid evidence.

The Trib article shines the spotlight on the very issue that has served as a center point of my campaign and my commitment to the citizens of Lake County, and this IS an issue of concern that I am glad is getting a fresh burst of pre-election discussion.

I teach DNA and the laws of evidence , my platform has been clear from the day I announced more than one year ago, about the importance of forensic sciences, as well as improving training for prosecutors and law enforcement.

I have outlined specific actions I'm prepared to take, including the creation of an independent Case Review Panel, developing protocols for the prosecution of cases with forensic evidence, and making changes to policies, procedures and training.

Throughout the campaign, I have been meeting with law enforcement, the legal community, victims, victims' rights advocates, civil rights leaders, the faith community and all community members that this effects--sharing perspectives to address the most common causes of wrongful convictions.

Being State's Attorney is about making tough decisions and one of the toughest decisions a State's Attorney has to make is deciding when not to charge cases where there is insufficient evidence. I have the courage and confidence to make these difficult decisions and stand behind them. I'm committed to being tough on crime and making sure everyone is treated fairly... and that justice is served.

Lake County should never have its prosecutorial motivations be in question. I pledge to bring an independent, fresh perspective and new ideas to the office of State's Attorney and to restore its reputation to one in which we can all be proud.

I will do all in my power to make sure every citizen in Lake County is given the justice they deserve. With respect to specific pending cases, I cannot comment until I have all of the information. I do not have the benefit of having access to all of the State's evidence. I can assure you that if elected and given the opportunity to analyze all of the evidence in the Starks case--or any other case for that matter-- and I do not believe that the evidence supports a charge, I will have no problem dismissing the case.

Mr. Nerheim, while your answering a question on this blog is something that's very much appreciated, and very refreshing, it also exposes you to having to answer some harder questions.

It would be appropriate for you now to call on Mr. Waller to drop the battery charge against Starks. The victim testified that the rapist beat her. The issue in the rape case against Starks was identity. The DNA excluded him, and nobody disputes that. The office concedes that it has no rape case when it drops the rape charge. The office has advanced nothing to indicate that it has any evidence that would support the battery charge.

What other "evidence" are you waiting for? There is no indication that any exists. If there's something else pointing to his guilt in the battery case, we ought to hear it.

Your party has controlled this office for as long as I can remember. You have a veteran state's attorney, your former boss and a leading Republican in the county, sitting in that office prosecuting a baseless case because someone (?) believes he's guilty even though the evidence points somewhere else. Seems to me Waller, for whom you worked for 7 years, could give you quite a boost if he were to drop the battery charge against Starks at your urging. It would be a nice way of demonstrating that your party is serious about wrongful convictions and overzealous prosecutions, and that your party maybe can be trusted to keep this office.

But I doubt that will happen. I wonder if he would throw you out of his office.

It is time for new leadership, and new leadership means something other than the Republican Party controlling that office and telling us that we don't know enough about the Starks case to know that, as Zorn put it, Waller is giving Starks and us the middle finger salute on his way out of the office.

As the Republican nominee, don't you think you ought to find out or be told, and now, not in November? Why should a wrongful prosecution stand for even a day? Why should we accept your party's promise that you'll deal with it later, in due time? Do justice and do it now. Your party controls the office. They got rid of Mike Mermel for you. They should be able to do this, or you should be able to make it happen, and if you can't, that tells us the voters a lot.

I believe that one of the problems is that it goes against the basic nature of most people to admit that they were wrong and that feeling is exascerbated when your being wrong cause harm to someone else. But a basically good person is also troubbled by this. So the "good" person tries first to come up with a reason in their own mind why they were not actually wrong. Which is when you get the need to believe that it is likely an 11 year old had consensual sex shortly before being raped.

I think that the only way to deal with some of these cases is to have a special "wrongful conviction" team within the prosecutors office whose job it is to look at signficant new exculpatory evidence after conviction. These people must have been univolved in the original conviction and whose job security cannot be on the line based on the decison. This might even involve having prosecution offices in different counties look at each other's work and allowing the other prosecutor appointment as a "special" to make the decisions about the case.

You seem to be under the impression that as a candidate for the office I have the ability to have cases dismissed simply by calling the State's Attorney's Office and asking them to do so. I can assure you that I have many clients that wish that were true!

Mr. Starks has a lawyer. It is that person's duty to represent him. As State's Attorney, I will make decisions based on evidence. Decisions in criminal cases should never be made on the basis of any perceived gain. I do not know what evidence the State has in the Starks case. That is the point. I believe that evidence should come out in a trial. I would hope that the State has sufficient evidence to pursue the charges in that case. If so, that evidence should be admitted only in a trial. If not, shame on them.

I go to court in Waukegan every day and handle cases against the State's Attorney's Office making sure that people are treated fairly. This election is about justice, not politics. If you want this office to be about political party politics, then I am not your candidate.

ZORN REPLY -- This sounds wise to me. All we can ask -- all we should ask -- is that a head prosecutor use his best judgement based on the facts available, not on a desire to win, a hunch or inclination, on a desire to ingratiate him or herself with police or predecessors or staff, or on what a newspaper columnist says.

I understand that you can't call Mr. Waller and have "cases" dismissed including those involving your own clients. That's not what we were talking about. But I appreciate and accept that at this point, as a candidate, you haven't looked at the file or wouldn't want to inject yourself into a pending case for which you might be responsible at a later time. That's fair.

And yes, Starks has a lawyer whose duty it is to represent him, and if all you meant to say was that you as a candidate would leave it to Starks' lawyer at this point, then fine. But the adversary system failed in these several unfortunate cases in Lake County, and it failed in large part because the prosecutor failed in his duty to the sovereign to ensure that innocence does not suffer. If you are elected, you must not only "make decisions based on evidence." You will need to make sure that in every case, your assistants understand and internalize the famous quote from Berger v. United States, and especially the part about what it means to have a duty to the sovereign. It's not enough to say "Starks has his own lawyer."

Reform goes way past a conviction integrity unit or a review panel of volunteer judges, lawyers, and police. It will be about how the winner of this race runs the office, and about what culture he instills in the office from the tone he sets at the top. You have a lot of young, impressionable people up there in the assistant ranks, and a few veterans, but I believe they are good lawyers, and they will follow your lead.

Thank you for taking the time to engage on this blog, and good luck in your campaign.

Our justice system is a bad joke. A man gets convicted for a crime he didn't commit and then when he proves that he is innocent instead of saying "hey, sorry we screwed up" they refuse to admit they are wrong and let the guy go. I think the prosecutors should have to trade places with him and they should sit in prison until they prove he is guilty.

About "Change of Subject."

"Change of Subject" by Chicago Tribune op-ed columnist Eric Zorn contains observations, reports, tips, referrals and tirades, though not necessarily in that order. Links will tend to expire, so seize the day. For an archive of Zorn's latest Tribune columns click here. An explanation of the title of this blog is here. If you have other questions, suggestions or comments, send e-mail to ericzorn at gmail.com.
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Contributing editor Jessica Reynolds is a 2012 graduate of Loyola University Chicago and is the coordinator of the Tribune's editorial board. She can be reached at jreynolds at tribune.com.